Wandered into court costs minefield

[giraffes]

Hi! This is my first public posting so please bear with me.

 

My GP practice removed me from their patient list without warning and, while not yet re-registered I had a severe stress reaction directly as a result of that sudden change in my circumstances. I receive a disability allowance for my anxiety-depression.

 

I asked the surgery for further information under the Data Protection Act and Freedom of Information Act for access to my health records and certain policy details at the surgery. All my requests were refused. Items were sent which I had not asked for, other items were forged in an attempt to pass them off as the documents I wanted. Reasons for refusing access (the confidentiality of other patients' information) were not to be believed.

 

I wrote letters between May and December trying to extract any clue to explain the grounds for the termination of my care. I made repeated requests for three health care documents in particular, but all was in vain.

 

I applied to the small claims court against the practice for what I termed "specific performance" of my Data Protection rights of access to the three documents. I had no interest in any compensation cash. This was to be the first action to give me information for further action against the practice for breaking NHS regulations and clinical negligence in the way the GPs had taken me off their list.

 

I now find myself on the brink of disaster with an order for costs already against me which the defendants have put provisionally in the sum of £3000 claimed and more costs likely unless I can get my head around this can of worms.

 

I consider myself reasonably intelligent, diligent and cautious in my way of proceeding. I bought a book "Small Claims Procedure in the County Court" which was not cheap and read it and re-read it before making my claim. The book said I would need to make a claim under Part 8, adding that it might be allocated to the small claims track at allocation stage. I proceeded under Part 8 because it was the only action I could find for claims not involving a claim for a debt of money. It turns out that a Part 8 claim is not classed as a small claim, whereupon by proceeding I unknowingly opened myself up to liability for costs. So much for protection from costs boasted by the said book.

 

However, there is also the technical aspect of the rules which I find are becoming increasingly fraught and beyond what is reasonable to expect of a lay litigant.

 

Between the issue of the claim and the date of the hearing the GP practice had a further six weeks in addition to the 8 months already elapsed to provide me access to the documents I sought. However, they continued to withhold, even withholding the legally due confirmation whether or not the documentation actually existed. There really was no defence available to them for this obstructive behaviour but at all times their representative has used a tone of warning to me that all their costs would be due from me, which he emphasised by sending a bill for £ks.

 

At the eleventh hour certain documents were supplied and, while I had reason to believe they were not authentic, I decided to withdraw my claim to avoid the potential for increasing costs. That is because I did not feel confident I could explain to the court why for purely practical reasons (such as the difference between "minutes" and "notes" of a meeting) my claim would appear not to have been satisfied.

 

The defendant's representative had written me that I could avoid hearing costs by withdrawing the claim by a deadline they set for two days before the hearing, but had not sent me the documents in question until the day before their deadline. I did not get them on that day but the day after. I withdrew my claim on the eve of the hearing, rushing the withdrawal which I had not familiarised with, never having thought I would be using that procedure.

 

I have now found out that the defendants' representative claimed the withdrawal was not all it should be and sent a barrister to attend the hearing knowing I would be absent. Counsel had my claim struck out and costs, including those of his attending on that day, ordered against me. From my point of view, he attended for no reason other than to claim his costs for attending. He knew I had withdrawn the claim and that his clients had the benefit of an automatic entitlement to costs up to the day before the hearing. It appears to me he knew there was little if anything in the way of costs coming their way due to their abysmal and vexatious conduct of pre-trial issues, so he acted to extort costs by exploiting my lay status and the fact that the judge would not have in the court bundle my withdrawal filed only the day before.

 

I am preparing an application to have the striking out and costs order set aside.

 

I would like to hear from anyone who can help me with technical info about what makes a withdrawal (discontinuance) effective.

 

Does it have to be in the proper form (I sent a letter) and what is the effect if it does not state it has been served on the other party?

 

The court phone clerk told me I would need the court's permission to withdraw, but there were no undertakings or other complications needing to be settled before withdrawal. However, in view of what she said, while I opened by saying "I write to withdraw my claim under the above reference", I asked overleaf for the court to “communicate this motion to withdraw to the defendants” . In the event I took the precaution of faxing this letter to the defendants’ solicitor and phoning and discussing my withdrawal with him. He had replied he was under a court order to attend anyway.

 

If it turned out the court's permission to withdraw was not needed, would not my withdrawal have taken place when I took these actions? I cannot think of any other reason why the judge would agree with Counsel that the withdrawal was not effective.

 

As the saying goes, HELP!

　　

[AndyOrch]

Not effective because you didnt issue a Notice of Discontinuance (N279) and no you wouldn't need permission.

 

CPR 38(PD38.3) http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part38

 

Why did you issue a Part 8 claim...why not a part 7 with a limit of 5K? Ensures SCT/

 

Regards

 

Andy

[giraffes]

Thank you, Andy. I saw elsewhere on this site a guy said he had withdrawn by letter. Why are the rules being held against me so strictly? I ask this because the defendant's solicitor did not return an acknowledgement of service of claim to the court within the alloted 14 days. By rights he was not even entitled to take part in the hearing, if the rules are applied strictly. My letter withdrawing my claim contained all the relevant information. How can they hold rules against me when the value of my claim (nil pounds in effect) should have put it into the SCT? I am now so miserable. I wish I hadn't started this. I feel I have been made the victim of the defendant's solicitors experience and knowledge. I can't see anything of his behaviour as according with the ethos of Part 1. Is the law really so thick skinned as this?

[steampowered]

What costs were awarded against you? Did the court assess costs at the hearing, or did it leave them to be agreed between the parties or go to an assessment?

[giraffes]

Hi, steampowered. The judgement is that I do pay the defendant's costs of the case. To be subject of a detailed assessment in default of agreement. The defendant's representatives have billed me for £1.7k pre-hearing and £1.2k for the hearing (set down for 20 minutes). I am appalled at these exorbitant figures for a job a schoolboy could have done (namely, asking for more money) and I am in any case unemployed! It is almost funny...

 

I have heard from defendant's representatives who state that the judge found my withdrawal had not been sufficient to discontinue the claim. I am waiting for the judge to state his reasons for granting the order in reply to a letter I have sent in. Can you offer me any encouragement or technical knowledge? Thankyou for your interest.

[unclebulgaria67]

Think you should get some free legal advice. See if these people can help.

 

http://www.barprobono.org.uk/

[giraffes]

Thanks, Unc.

[steampowered]

On first glance, and without actually seeing the documents, £1.7k for pre-hearing sounds reasonable and difficult to challenge. £1.2k sounds rather a lot for a 20minute hearing. Do you have any more details on how that figure was reached?

[giraffes]

Hi, steampowered.

 

Date of hearing 21/02/2013.

 

Pretrial 15/01/2013 to 18/02/2013 £1.7k

Add 18/02/13 to 21/02/2013 £1.2k

 

In fact when I posted above I had not spotted the inclusion of the 18/02/2013 twice, nor the last 2 days pretrial into the addition of the second part. The reason appears to be that the bill was drawn up on the 18/02/2013. Subsequently, when estimate sent me again on 04/03/2013 it had not been reworked to include the last three days pre-trial seperarately from the hearing costs.

 

Counsel's attendance at trial and other work is quoted at £500. Pretrial solicitor's work in the last three days at another £500 ish plus VAT = £1.2k. My only objection appears to be "2.1 hours attendance on opponent". I have never met these people.

 

I am very grateful for your interest. I am thinking of seeking the setting aside of the order based on a notion that CPR Part 1 applies to provide that the parties have a duty to be honest with each other in the pre-trial correspondence and that therefore an application for setting aside can be made on grounds of dishonesty. The basis of that argument is that the defendant's representatives had method, motive and opportunity to deceive me and fluster me into making a wrong decision to withdraw my claim.

 

In effect, my intuitive reasoning that withdrawing my claim would relieve me of costs liability (as in Employment Tribunal claims) was exploited. I cannot prove it, but there is a good balance of probability that that was so. In addition, the access to documentation the subject of my claim under Section 7 of the DPA was not provided until the last minute (in effect, due to not being present to sign DX receipt on 19/02/2013, not until 20/02/2013) forcing me to make a hasty decision on the eve of the trial, and prompted to withdraw by misdirecting statements made by defendant's solicitor as to his attendance and entitlement to costs if I did not withdraw.

 

I had written to them asking them not to make suggestions as to how I should conduct my claim. They continued to make these "recommendations" but, by asking them not to send me advice, I had not given them licence to send me misleading advice. If they were going to foist advice on me it had to be honest. There must be some lenience available to a lay claimant who had been diligent to the end but still made wrong decisions under influence from the opponent's professional solicitors. There is some evidence that the haste induced into the final situation had also caused the defendants' solicitor to make a wrong decision. Any thoughts?

Edited March 24, 2013 by giraffes

[steampowered]

Hi Giraffes,

 

There are a few things I would like to clarify. Do I understand correctly that the documents you were asking for were provided just before the hearing? Exactly how long before the hearing was this?

 

Do I understand correctly that the Defendant sent you a letter saying you can avoid costs liability for the hearing if you withdrew your claim 2 days before the hearing, but you only received this letter the night before by which time the deadline had already passed?

 

When was the hearing? If it was late Feb I am conscious that time is ticking.

[giraffes]

Hi, steampowered, and I am grateful for your continued interest.

 

What the other side might call "the first part" of one of the documents to which I sought access, provided as colour screen dumps from the audit trail of entries onto my electronic health record, (though I had asked to see it being operated by a person, as provided by certain CPR Rules) were sent on 15/02/2013 accompanied by a letter saying further printouts to follow but "the requests made in your Part 8 claim...we are satisfied have now been met. Accordingly we would be grateful if you could confirm by 12pm 19/02/2013 your claim has been withdrawn." Continuing with "If you do not withdraw your claim and we are required to attend the hearing on 21/02/2013...we are instructed to seek... costs associated with the same."

 

That letter would be deemed served by RD on 18/02/2013 but actually I had to get it from Royal Mail depot, so not got until 19/02/2013 with dead line passed. (Reference in my last reply to DX received on 20/02/2013 should have been reference to this RD received on 19/02/2013. My apologies.)

 

Further monochrome screen dumps (what defendant might call the "second part" of audit trail) were sent with letter dated 18/02/2013 by DX, signed for by me on 19/02/2013 (probably about noon). "This document confirms our position outlined in [letter dated 15/02/2013]. We otherwise enclose... Estimate of Costs [£2.9k]. As previously advised, this document will form the basis on which the court will assess our client's claim for its legal costs associated with attending [on 21/02/2013]"

 

Despite my disappointment in not being given access to audit trail in person, and my suspicion that minutes of meeting (a further document in my claim) were not genuine and might not be the only minutes, but with inadequate time either to fully understand the audit trail printouts or to prepare to argue difficult issue of insufficient access to the items I sought (the last and third of these being merely okay because its accuracy depended on the audit trail), I decided to withdraw my claim. However, on 19/02/2013 I first faxed to ask for certain terms to be met, namely, the minutes to be certified a true copy of the only minutes, provision of a brief description of the contents of a particular "events" file, (being suspicious this may contain other undisclosed minutes) and a "meaningful contribution" to my costs. There was no answer.

 

I believed from defendant's representative's terms that by withdrawing I could avoid all costs - as per Employment Tribunals. However, I had not met their dead-line, the chances of doing so remote given the vaguaries of postal system.

 

I had not familiarised with CPR Part 38, never having intended to withdraw because I believed at all times the possibility of false or inadequate access as stated above required the court's attention and an order for enforcement, a matter I did not withhold from the defendant. (There was good reason for me to believe this, seeing defendant's studied avoidance of access including supply of falsified documentation in the long history of the correspondence. I am still of this view and still require the defendant to at least authenticate the minutes of meeting.)

 

I am quite sure in my mind I had finally opted to withdraw believing on balance this was the optimum course available to me because I had been deceived by the other side's continued emphasis on avoiding their costs, begun at an early stage and continued throughout.

 

Defendant's representative sent barrister to hearing despite clear withdrawal (or if not, a clear intention that the claim be withdrawn without hearing it) discussed between case solicitor in person and me on telephone 20/02/2013. When prompted I said that the court phone receptionist had told me a week or so ago that there was a staff shortage and on that basis I said it was unlikely that my withdrawal would be administered by time of hearing. In addition, defendant's solicitor also stated three times in that phone call that "we" (his firm?") were "under a court order to attend". I believe the deliberate intention was to deceive me that they had to attend but that I did not.

 

The grounds for sending Counsel were stated in a letter subsequent to that call, which I did not get until too late on day of hearing, that the court would have insufficient time to administer withdrawal notice and so no choice but to send Counsel to strike out and get costs. You can see that even if I had got this letter in time, I would have felt this would not succeed, court's shortcomings not being my fault, so no need for me to attend as if to argue anything. I am still certain of that because of precise terms of CPR Part 38, (which has no associated PDs.)

 

This letter was faxed to a local shop and handed to me by the shopkeeper when shopping. I am certain I was not meant to get it in time, if at all. This indiscretion is the "wrong decision" to which I allude in my last reply and has been reported to the Information Commissioner in the strongest of terms as a reckless breach of privacy law.

 

Finally, court struck out claim in my absence apparently on basis that my terms of withdrawal were inadequate - not being on the right form - but, if so, that too was a result of opponent's withholding to the very last the provision of some form of access to the information I sought. By causing me to hasten, the opponent induced the strong possibility of mistakes being made, both as to the adequacy of the documents supplied and in the process of discontinuing. If that had been opponent's intention, as I believe, it worked on several counts.

 

I sent application to set aside order for striking out and costs within week. Stated by Court staff to be "safely received". Now awaiting statement by judge of reasons for granting applications for striking out claim and the award of costs, as somewhat in the dark.

 

I hope this is helpful. Thank you again for your continued interest.

Edited March 26, 2013 by giraffes

[steampowered]

I see. This is indeed an unfortunate situation. The default rule is that the Defendant should get costs on discontinuance (or strike out). However the fact that they provided the information you were seeking at the very last minute seems to be a very good reason for departing from the ordinary rules on costs (under CPR 3.9). What you are seeking is to challenge is the costs order rather than the strike out itself (since the default rule is that you must pay costs whether it is a discontinuance or a strike out).

 

When you come to argue this I would focus strongly on the argument that (1) you had a valid claim, (2) the documents were then provided, (3) there was no reason for the hearing to go ahead, (4) the hearing only went ahead because of the Claimant's conduct in providing the documents at the absolute last minute and without taking steps to inform you by a faster method of communication. I can see where you are coming from when you say you have been misled - the wording of the letter could be seen to suggest by omission that they were not instructed to seek costs if you withdrew immediately - but I do not think this is a particularly strong argument (since the Defendant's misrepresentation or otherwise would not affect the default rule under the CPR).

 

I am not sure there is much more we can do right now other than wish you luck, as the application has been made, but keep us updated and let us know what help you need. Did you accompany the application with evidence explaining what you are asking for and why (normally in the form of a witness statement), if not you should send this in ASAP, if the application does not explain what you are asking for and why the judge may reject it without a hearing.

[giraffes]

Thank you, steampowered.

 

I applied for the setting aside by letter (four pages in length), beginning by asking for a statement of the reasons for the judgement. I also pointed out that due to the need to respond within seven days I did not have my evidence (mainly as to the effective withdrawal of the claim - phone and fax records) and saying I was waiting for that evidence from my service provider. I put forward various hypotheses as to why the judge had granted the applications for striking out and costs, and then set out "rebuttals". This is obviously not an ideal way to defend one's interests, so I followed this with another letter asking for the judge to respond directly giving reasons for the judgement. Only when I get these can I be said to be on an equal footing.

 

It is my intention to follow up with an N244 application, alluding to the 4 page letter which I will confirm is a statement of truth, and augment this with a "rebuttal" of the actual reason the order was drawn up, once I have it. I intend to accompany this with copies of all the months of correspondence showing the defendant's avoidance, (summarised in a seperate document for convenience which is already prepared - it took me hours...) which included renaming documents and passing them off as the documents I sought. The defendant has been vexatious and antagonistic throughout. Their final delay up to the last minute is entirely typical of their conduct. I feel I am entitled to my costs, which is over £100 in disbursements alone.

 

My main problem is a lack of familiarity with "due process". For example, seeing that costs have been ordered against me, would it be presumptious to seek my own costs when applying for the setting aside? My arguments for setting aside include an invocation of my long involvement in great expense and inconvenience attempting to enforce my DPA Section 7 right to access. I am concerned that obtaining reimbursement and compensation might be considered to be a matter falling under the detailed assessment proceedings and so out of place in arguing for the setting aside as technically a wrong decision. How do you see this?

 

Another question centres on what constitutes a valid claim.

 

If I accentuate the defects in the defendant's eventual delivery of access, while, from my point of view, that goes to their recalcitrance and therefore to allotment of costs, could it otherwise be taken to mean they had no particular reason to respond as I claimed they ought, implying limited validity of my claim and questionable success on my part? My dissatisfaction with the eventual delivery of the access I sought is a matter of record because at one stage I wrote in and asked for a part of my claim to be treated as a request under DPA Section 15(2) (Court's inspection of item before disclosure to establish if d.c. has complied with Section 7 request.) When I pulled out I stated this was because I was not confident I could persuade judge my request for the minutes of meeting had not been met. However, my doubt about them arose only because an item previously stated to be "minutes" had been re-named as "notes" when sent to me, and I guessed that nobody actually knows the technical difference between the two. I realise however, that, in my absence, the defendant's representative could have drawn the court's attention to that difficulty and made something of it as if the claim was unprepared or inarguable. At all times I have expected the court to have an eye for fairness but that might have been my biggest mistake.

 

I would be very grateful for your thoughts as I am feeling my way in the dark. Unfortunately this stuff is not taught in school (or at least it wasn't in my day...). Thank you again.

Edited March 28, 2013 by giraffes

[giraffes]

Hi again, steampowered.

 

It's a good job you're here...I've just looked at CPR 3.9. I've seen it before but had no idea it would apply. Didn't understand what "sanction" or "relief" was. Thanks a million.

[steampowered]

I applied for the setting aside by letter (four pages in length), beginning by asking for a statement of the reasons for the judgement. I also pointed out that due to the need to respond within seven days I did not have my evidence (mainly as to the effective withdrawal of the claim - phone and fax records) and saying I was waiting for that evidence from my service provider. I put forward various hypotheses as to why the judge had granted the applications for striking out and costs, and then set out "rebuttals". This is obviously not an ideal way to defend one's interests, so I followed this with another letter asking for the judge to respond directly giving reasons for the judgement. Only when I get these can I be said to be on an equal footing.

 

It is my intention to follow up with an N244 application, alluding to the 4 page letter which I will confirm is a statement of truth, and augment this with a "rebuttal" of the actual reason the order was drawn up, once I have it. I intend to accompany this with copies of all the months of correspondence showing the defendant's avoidance, (summarised in a seperate document for convenience which is already prepared - it took me hours...) which included renaming documents and passing them off as the documents I sought. The defendant has been vexatious and antagonistic throughout. Their final delay up to the last minute is entirely typical of their conduct. I feel I am entitled to my costs, which is over £100 in disbursements alone.

I think it is best to prepare an N244 seeking to set aside the costs order straight away. Attach a witness statement which includes the information set out in your letter. Attach a draft order if you are comfortable preparing this.

 

As you want the judge to set aside a formal court order I think you need to comply with the proper formalities. A letter does not have weight because it has not been verified by a statement of truth and because the letter will not have been sent to the other side - the other side have a right of reply to your application.

 

Be careful not to get carried away with this strike out argument. You are not actually arguing for the strike out to be set aside, as you do not want to continue your claim. You are arguing for the costs bit to be set aside. I do not think it is worth speculating too much about the strike out, focus on the Defendant's conduct and how it provided documents at the very last minute, accordingly should be no order as to costs.

 

My main problem is a lack of familiarity with "due process". For example, seeing that costs have been ordered against me, would it be presumptious to seek my own costs when applying for the setting aside? My arguments for setting aside include an invocation of my long involvement in great expense and inconvenience attempting to enforce my DPA Section 7 right to access. I am concerned that obtaining reimbursement and compensation might be considered to be a matter falling under the detailed assessment proceedings and so out of place in arguing for the setting aside as technically a wrong decision. How do you see this?

 

If we are talking about £100 I would leave it. You could add a paragraph at the end of your witness statement explaining that you should be entitled to costs as they only provided documents at the last minute, but don't go overboard here.

 

If I accentuate the defects in the defendant's eventual delivery of access, while, from my point of view, that goes to their recalcitrance and therefore to allotment of costs, could it otherwise be taken to mean they had no particular reason to respond as I claimed they ought, implying limited validity of my claim and questionable success on my part? My dissatisfaction with the eventual delivery of the access I sought is a matter of record because at one stage I wrote in and asked for a part of my claim to be treated as a request under DPA Section 15(2) (Court's inspection of item before disclosure to establish if d.c. has complied with Section 7 request.) When I pulled out I stated this was because I was not confident I could persuade judge my request for the minutes of meeting had not been met. However, my doubt about them arose only because an item previously stated to be "minutes" had been re-named as "notes" when sent to me, and I guessed that nobody actually knows the technical difference between the two. I realise however, that, in my absence, the defendant's representative could have drawn the court's attention to that difficulty and made something of it as if the claim was unprepared or inarguable. At all times I have expected the court to have an eye for fairness but that might have been my biggest mistake.

 

Relying on the difference between "notes" and "minutes" seems to me to be a hopeless argument. I do not think you can draw any conclusion from the fact that "minutes" were described as "notes" or vice versa.

 

I am actually not sure the dissatisfaction is relevant. If you did not believe the documents complied with your request, then you should have continued with your claim. You chose to discontinue. You want the judge to believe that you discontinued because they provided the documents at the very last minute (which would be a good reason for departing from the normal rules on costs) and not that you discontinued because you got scared (which would not be a good reason, and would mean the defendants would get their costs). The point you need to focus on is the point that the documents were provided at the very last minute.

[giraffes]

Thank you, steampowered.

 

I am writing this part to ask you to check my understanding of the principles involved because of the obvious paradox that if I had not withdrawn my claim, the defendant's representative would definately have said that was unreasonable because they had met my claim. Costs would have gone to them. On the other hand, withdrawing gave them an entitlement to costs anyway. That seems to be a no-win-for-the-claimant clause built in to the procedure, but is that a correct understanding of it?.

 

Also, is the following understanding right? It seems to me that the costs order was a "sanction" because the other side convinced the judge I had done something wrong. I don't know what that is yet. So in attempting to set aside the order for costs, I would have to show that the striking out was incorrect because I had not done anything wrong. I agree I would not be asking for the claim to be reinstated, but if the striking out was incorrect, the sanction should be lifted. Am I on the right lines?

 

You seem to be saying the costs order can be set aside, whereas I was thinking all I could do was try to get the costs reduced. That is why I was intending to show the full picture of the defendant's recalcitrance going back to May 2012 and continued vexatiously to the very end. The idea of claiming my own costs was to suggest the trouble these people have put me to. My total income is £101.35 per week.

 

For this reason, I am confused about showing I had withdrawn the claim in response to the supply of the paperwork answering my claim. See my first remark above! What is the principle invoked by the fact that the supply was not until the eleventh hour? I want to get this right but I am feeling confused.

 

Yes, I served a copy of my four-page letter on the defendant's solicitor and they have sent me a reply which they copied to the court, so it's official. I believe I must have the benefit of an implied right to add to my application, seeing that I had to guess the reason for the striking out, and I also have to present my evidence, when I get it, in the body of the application. Thanks for your indication of incorporating the contents of the letter. I was going to leave it separate. ("4.2 The application notice (which may be an informal document such as a letter) should describe the error and set out the correction required...")

 

In their reply the other side state they did not reply to my terms for withdrawing because they had satisfied my claim, but, they continue, "It was therefore decided that we would attend the hearing." To my mind this was to decline my offer of withdrawing on terms. Perhaps this part of the reply doesn't make any sense?

 

They state that their Counsel told them the judge took the view that my withdrawal was not sufficient to discontinue my claim. I am regarding this statement with caution and waiting for the official version, because elsewhere they had said they would attend because the court would not have had time to "action" the withdrawal, and in another place they said they were "under a court order to attend" anyway. In yet another place they say I had only notified an "intention" to withdraw, despite in the phone discussion I had said I promised not to attend if they would not attend. Perhaps the truth about the striking out is to be found in this variety of pretexts for attending.

 

In their letter they belatedly tell me that the claimant who discontinues is liable for costs - suddenly they want to be open about that...

 

However, the letter is mainly devoted to defending their faxing of the letter to the shop. They wish me to withdraw my "allegation" about that. (I wrote that there was a sensation that they had engaged in a ploy to ensure my absence from the hearing - there was no allegation as such). Finally a reminder - as if I needed it - that if there is a further hearing they will seek the costs for that as well. There is a refusal to engage in further correspondence which is a relief to me - they have included yet another "recommendation" as to how I should respond and I find their patronising abusive. In short I regard their letter, which encloses a load of papers they surely know I already have on file, which has become a habit with them, as a load of "gumf".

 

About "minutes" versus "notes": in the history of the correspondence the defendant had sent me an item which they claimed was minutes of meeting. It was supposed to be a remnant following redaction of a document said to contain personal data about other patients. There were just 39 words left, and they repeat what I had already been told (in effect that there had been a meeting about me). It appeared to have no function other than to purport to be minutes of meeting and was probably drawn up for that purpose. On this basis the defendants subsequently submitted they had met the part of my Part 8 claim for details about why they had removed me from the patient list. Obviously I told them otherwise.

 

Among the documents sent me at me at the eleventh hour was a second copy of this item now described as "Notes" of the meeting, including large areas of paper space blocked out as if containing other items. (It still comes over as a fake). (By the way this is not the only document that the defendant re-named in an attempt to pass it off as something else. One of the others (though admitted to be a re-naming) is their "Policy for the Removal of Patient Patients Code of Conduct".)

 

A new document headed "Minutes of meeting" without any redaction was also sent at the last moment, and this was stated to satisfy my claim for details. If this is genuine, there is no explanation why it had not been sent when I asked for it, because it does not contain anyone else's data, while the redacted item was not appropriate to the purposes of anybody attempting to be transparent and accountable. I took the view that these new "minutes" were no more genuine than the "Notes", because their context, like that of the "Notes", clearly relates to a later stage, probably weeks, after the supposed date of the meeting, whereas minutes are supposed to be taken at the instant. The "minutes", like the "Notes" contain an allusion to other details on file, which may or may not be a cross reference to each other.

 

For this reason, not wanting to be taken by surprise in the future by any further minutes, I intended to ask the judge to rule on whether the "minutes" were genuinely minutes (though not taken at the time of the meeting) or merely "notes". If he had ruled the minutes were notes because they were not taken at the time, I would have asked him to order the production of the genuine item. As you say, it would have been a difficult argument, because the judge would probably have found they were minutes, but just not very good ones. So I withdrew the claim, the minutes being the main document to which I required access and because I still believe, rightly or wrongly, that because the minutes are so inadequate, they will probably assist me in the next stage. I would feel more at ease, though, if the defendants, who have proved their versatility and initiative, would certify the item to be the only minutes relating to my case.

 

Again, I think you can see that if I knew discontinuance would result in the other side's entitlement to costs, I had reasons to continue that would probably have been deemed reasonable and so there had been a better chance to escape an order for costs which a withdrawal would never present for me.

 

As I will do better just seeking for the costs order to be set aside, please explain that part to me again. What is the significance of the late delivery of my right to access under the DPA? Are you content that it will serve me more effectively than presenting a veritable catalogue of disreputable conduct perpetrated and perpetuated by the defendant over an extended period when, as data controllers of my health record, they had an obvious obligation under the DPA? Thank you ever so much for your patience.

Edited March 29, 2013 by giraffes

[steampowered]

Thank you, steampowered.

 

I am writing this part to ask you to check my understanding of the principles involved because of the obvious paradox that if I had not withdrawn my claim, the defendant's representative would definately have said that was unreasonable because they had met my claim and costs would have gone to them. On the other hand, withdrawing gave them an entitlement to costs anyway. That seems to be a no-win-for-the-claimant clause built in to the procedure, but is that a correct understanding of it?

 

It seems to me that the costs order was a "sanction" because the other side convinced the judge I had done something wrong. I don't know what that is yet. So in attempting to set aside the order for costs, I would have to show that the striking out was incorrect because I had not done anything wrong.

 

The fact that costs were awarded does not mean you have done anything wrong. The default rule under CPR 38.6 is that a claimant who discontinues is liable for costs. This is automatic. It is there to stop people bringing hopeless claims to apply pressure to the other side and then discontinuing if they don't get a settlement.

 

Technically, what you should have done is invited the Defendant to agree that there would be no order as to costs despite the discontinuance, and if they refused then attend the hearing and argue that you should be granted permission to discontinue without any costs implications. However I do not see how someone who is not a professional litigator could be expected to know that when the documents are provided the night before a hearing, so I think you have a decent chance at making the application now.

 

I agree I would not be asking for the claim to be reinstated, but if the striking out was incorrect, the sanction should be lifted. Am I on the right lines? You do seem to be saying the costs order can be set aside, whereas I was thinking all I could do was try to get the costs reduced. That is why I was intending to show the full picture of the defendant's recalcitrance going back to May 2012 and continued vexatiously right to the end.

 

I would be asking the court to get rid of this costs order entirely.

 

This background information is "sort of" relevant but in my view there is only thing that matters. The only thing that matters is the Defendant's conduct in providing the documents at the very last minute, that is why their client has ended up with legal costs.

 

Honestly I would steer clear from making unsubstantiated accusations like accusing them of "vexatious" conduct through the whole thing. Unless you want to look paranoid all accusations must (1) refer to specific conduct on which the allegation is based and (2) there must be a reason for making the accusation.

 

The idea of claiming my own costs was to suggest the trouble these people have put me to. My total income is £101.35 per week.

 

For this reason, I am confused about showing I had withdrawn the claim in response to the supply of the paperwork answering my claim. See my first remark above! What is the principle invoked by the fact that the supply was not until the eleventh hour? I want to get this right but I am feeling confused.

 

The criteria being invoked here is the Defendant's conduct in providing the documents at the last minute - see CPR 44.3 (4) (a).

 

On second thoughts, you might as well go ahead and ask for your costs. I imagine you would only get them by summary assessment, and if you want that then you need to serve a Schedule of Costs together with your application (disbursements plus the rate of £18 an hour for litigants in person). Obviously you will have to decide whether this is worth the work involved. If you are asking for something the court needs to know exactly what you are asking for.

 

Yes, I served a copy of my four-page letter on the defendant's solicitor and they have sent me a reply copied to the court, so it's official. I have "reserved the right" to add to it seeing that I had to guess the reason for the striking out, and I also have to present my evidence when I get it in the body of the application.

 

In their reply the other side state they did not reply to my terms for withdrawing because they had satisfied my claim, but, they continue, "It was therefore decided that we would attend the hearing." To my mind this was to ignore my intention to withdraw. Perhaps it doesn't make sense...

OK, well done on serving it on the other side, that does lend it legitimacy.

 

Personally I would just go ahead and make the application N244 immediately, attaching a witness statement.

 

The Defendant's response is actually very useful to you. They say that by providing the documents they had satisfied your claim. The implication being that you had a valid claim, and thus their entire costs could have been avoided.

 

They state that their Counsel told them the judge took the view that my withdrawal was not sufficient to discontinue my claim. I am regarding this statement with caution and waiting for the official version. They had also said they would attend because the court would not have had time to "action" the withdrawal, and in another place they said they were "under a court order to attend" anyway. In yet another place they say I had only notified an "intention" to withdraw despite the clear terms of the phone discussion in which, to reassure them, I had said I promised not to attend if they would not attend. Perhaps the truth is to be found in this variety of pretexts for attending.

 

With respect, I think this argument is weak. I do think it was reasonable for them to attend the hearing. The discontinuance was not formally effective and the notice might not have been processed in time, so if they did not turn up there is a risk that the judge would make an adverse order or even that you would still turn up and ask for an adverse order. If I was the sol I would definitely attend.

 

Do not carried away with this point about whether they should have attended the hearing. Your argument is wider than that. This entire set of circumstances was avoidable, the time pressure and the fact that there was not enough time to vacate the hearing is entirely their fault for providing the documents so late.

 

They belatedly tell me that the claimant who discontinues is liable for costs - suddenly they want to be open about that... The letter is mainly devoted to defending their faxing of the letter to the shop. They wish me to withdraw my "allegation" about that. (All I wrote was that there was a sensation that they had engaged in a ploy to ensure my absence from the hearing - there was no allegation as such). Finally a reminder - as if I needed it - that if there is a further hearing they will seek the costs for that as well and a refusal to engage in further correspondence. That is a relief to me - they have included yet another "recommendation" as to how I should respond and I find their patronising abusive. In short I regard their letter as a load of "gumf".

 

I don't think any of this is relevant.

 

About "minutes" versus "notes". In the pretrial correspondence the defendant had sent me a heavily redacted item which they claimed was minutes of meeting. There were 39 words left which just repeated what they had already told me (in effect that there had been a meeting). They claimed they had met the part of my claim for details about why they had removed me from the patient list. Among the documents sent me at the last minute was a second copy of the first item now described as "notes" of the meeting. A new document headed "Minutes of meeting" without any redaction was also sent. I took the view that these new "minutes" were no more genuine than the "Notes", because both had clearly been written some time, probably weeks after the supposed date of the meeting.

 

Its too late to start arguing about that now. If you did not believe the documents were genuine and you wanted legal recourse for that, then you needed to continue with the claim. Instead you chose to withdraw so I think you have to accept the documents that were provided. This is no longer a live point.

 

I am conscious that this has turned into a mess. As above I would be serving a N244, witness statement and (if you want to ask for costs) Schedule of costs immediately. Happy to look at a draft if that would help.

[giraffes]

Thank you. You have made your view of things very clear and I am almost certainly going to be guided by your own views.

 

Yes, I would have gone to the hearing if I had been the other side's sol, too, but I would have tried to communicate that with the claimant, not send faxes to shops...they were under no obligation to say anything, but once they opt to send a notice, I think it and its service must be all it should be.

 

Will look up CPR 44.3 (4) (a) immediately.

 

I agree that it looks like I had a valid claim. The implication that I had a valid claim is very strong as defendant's sol says three times claim has been satisfied. I suppose that is why I am taken aback with the automatic right to costs if such a claim is withdrawn, but I hear what you say about putting people off making weak claims.

 

The defendant's sol does refer in his last letter to the possibility of an agreement between the parties that the matter be discontinued with no order as to costs. There was no hint of this when he kept saying he would claim costs if he had to attend.

 

Yes, I would be very happy for you to look at my draft of order. However, I want to say that the "can of worms" to which I had initially referred is now looking more like spaghetti. That's meant to be positive spaghetti. Thanks ever so much.

[steampowered]

OK sounds good, will wait to hear from you if you need any further advice

[giraffes]

Hello again. Is steampowered there? Anybody listening? Anyway, I have a suspicious nature and I suspect something is going on with my friendly local civil court.

 

The recent history is as follows:

 

On 25 February 2013 my claim had been ordered struck out and I had been ordered to pay the defendant's costs.

 

On 03 March 2013 I applied to the court by letter for the setting aside of the order against me.

 

In the body of the 03 March 2013 application I had asked for an order for discovery of a document held by the defendant.

 

On 05 March 2013 the court acknowledged safe receipt of the letter.

 

On 13 March 2013 I wrote to the court asking for the judge's specific reason(s) for the order striking out the claim I had made. I saw it as unfair that I had to guess the reason(s) for the order when seeking to overturn it.

 

On 14 March 2013 the letter of 13 March 2013 was returned because I had not completed the fees remission form properly.

 

Also on 14 March 2013 the defendant wrote me about my application for setting aside. Included in the letter was the document for which I had asked for the order for discovery, so that part of my application had become redundant.

 

On 20 March 2013 I re-submitted the letter of 13 March 2013 with the fees remission form properly completed.

 

It had been my stated intention in the application for the setting aside of the court order to send in evidence in support of it once I had it. I had also intended to back it up with further argument once I knew the reason why the order had been made.

 

By 02 April 2013 I had heard nothing from the court in answer to my asking for the reason for the order. With the clock ticking I decided to send in my further arguments. I sent in Form 244 (notice of application) applying for the setting aside of the order of 25 February 2013. On page 2 I referred to the attached witness statement and in the second paragraph of the witness statement stated that I had applied to the court for the order to be set aside on 03 March 2013. I next stated the application had been in the form of a notice letter and I stated it to be a statement of truth.

 

I took this application to the court in person on 04 April 2013 and handed it in at about 14:00.

 

On 09 April 2013 I received a letter from the court giving notice of a hearing of the application for discovery, but no mention of the application for setting aside. The notice referred to a copy of the application for discovery being attached to it, and what was attached was my letter of 03 March 2013, being the application for the setting aside containing the application for discovery.

 

I wrote back straightaway to tell the court that since asking for the order for discovery I had received the document I needed from the defendant. I asked for the cancellation of the hearing for discovery, but made it clear I still wanted the application for setting aside the order against me to be dealt with. I posted that letter to the court on Tuesday 09 April 2013. Today is Friday. I have today received from the court a duplicate of the notice of hearing of the application for an order for discovery.

 

I think that duplicate notice may be the court's way of confirming that the hearing will be limited to the unnecessary order for discovery.

 

I need some certainty in this matter. If the court hears the unnecessary matter of discovery but ignores my application for setting aside the order against me can I complain about this in some way?

 

The unnecessary hearing is set down for 17 April 2013, i.e. Wednesday next week.

 

At the same time today I have received a letter from the defendant proposing a consent order, in effect that the court orders my application for discovery and/or the setting aside to be withdrawn, the defendant agrees not to enforce the order for costs against me, and there shall be no order for costs.

 

Steampowered, if you're there, looks like your take on this was excellent. Thank you.

 

BUT I still smell a rat in the legals trousers...any thoughts, anybody?

[steampowered]

I don't think this is a rat. It sounds more like the court clerk has got confused. Unfortunately court cock-ups are very common. I think you should write a letter to the court, copied to the other side, explaining that the discovery request is now unnecessary but the hearing should go ahead as a hearing for your application to set aside the judgment. Even better, take it into court personally and speak to someone about it. Ask for the letter to go in the court file.

 

Personally I think the Defendant's consent order sounds attractive. Obviously this is your call but I would take it. Of course, you need to check that the order is clearly written and makes it very clear that you will not be pursued for costs.

[giraffes]

hello again, steampowered. thank you for your interest

 

As you know, the issue I raised at the beginning had got complex because of my amateur status. I had let myself wander into a pretty state of affairs and I am ever so obliged by the interest you have taken which has put me back on the straight and narrow. In fact, I am pretty well gob-smacked at the turn of events in that the defendant is willing to let me off enormous costs. I couldn't have done it without you.

 

Yes, I did write to the court (and copy to the defendant's sol) that I thought there had been a mistake. The court's answer had been to send the same mistaken notice again, notifying the hearing for discovery on 17 April 2013 again. This had put me on alert for an attempt at jiggery pokery, especially as on the same day I heard from the other side's sol about the consent order which they had drawn up and enclosed for my signature. Again, everything is to be done in a hurry and the fact is I don't do well like that.

 

I therefore wrote for a postponement yesterday. I also complained, suggesting all was not as it should be and indicating sufficient dissatisfaction that I had warned of having an enquiry made of the proceedings if things are not done with more clarity. I pointed to the court's omission of answers to both my request for reasons for the order made against me and my request for an extension of time while that explanation was being prepared.

 

Today I got an order that the application for discovery listed for 17 April 2013 be withdrawn.

 

The matter is still ambiguous and I shall have to write again to ask, is the application for discovery standing in the place of the application for setting aside. If so why has the latter been ordered withdrawn.

 

My suspicions were aroused by the close proximity of (a) my filing of the witness statement (b) the defendant's seeking the consent order, and © the notice of hearing for discovery. The court has not acknowledged receipt of the witness statement and there has been no issue of the application for the setting aside since I filed it back on March 3rd. Such an issue of such a notice has neither been prompted by the filing of the witness statement on April 4th. Yet the defendant seems to be responding to the witness statement, which makes a powerful claim for the defendant to pay my costs of £800-ish. (I included a draft order too!) Do you see why I am suspicious? Could the defendant have been given wind of the strong push for my costs on some kind of chinese grapevine? Hoping to hear from you...

 

By the way I will be happy to give you a copy of my witness statement if you have a secure address. It is 8 pages long and obviously contains identity of defendant and my allegations against him.

Edited April 13, 2013 by giraffes

[steampowered]

I am also confused by what is going on so I cannot tell you what is actually happening. If you made multiple applications at the same time (application for disclosure and application for set-aside) it would be normal for those to be heard together at the same hearing, not at separate hearings (and indeed you could have made both applications on the same form). If the hearing has now been vacated I assume there is no longer a hearing, so you should write to the court to get the hearing reinstated if necessary.

 

I would try to speak to someone at the court to clarify this rather than writing letters. All the stuff you sent to the court is dealt with by administrative staff not by a judge. There is unlikely to be someone who oversees your file, the court staff just deal with correspondence as it comes in. Of course none of this will matter if you decide to accept the consent order.

 

If the reason for suspicion is the fact that the other side have your witness statement, this is not suspicious because the other side have a right to see anything on the court file. You were supposed to send a copy of the application and your witness statement to the Defendant at the same time as filing it with the court, they have a right to see these documents before the hearing.

[giraffes]

Thank you again, steampowered. Yes, I was suspicious because of a feeling that the witness statement had got to the other side (I enclosed a copy batch of all the documents for the court to issue to the defendant with the notice of hearing the set aside application) but the court had not issued the notice of hearing the set aside. I don't quite understand that. If the copy documents have been issued as if the application was alive and well, I have to ask myself why has the application itself not been notified for hearing? If it was mistakenly thought to be an application for discovery (despite having the right header on all 8 pages), why has the hearing now been cancelled instead of re-named, and/or a little explanatory letter from the court. The order cancelling the hearing for discovery was issued by the same judge who had heard the original claim in my absence and ordered costs against me. I would hate to think he is acting for personal reasons, namely, trying to avoid admitting he had jumped to the wrong conclusion or something like that. If he wanted to do that he could arrange the application for setting aside his order to be heard as something else and by cancelling that he would be trying to wipe out the whole shooting match. Well...I said I had a suspicious nature. Thank you for your advice to go to the court buildings and speak in person, but I have an awful feeling an attempt is afoot to stitch me up. In such cases I would feel more comfortable having things written down so that I can rely on them if I need to make a complaint. I think I need a representative to get beyond this stage in one piece. I am vulnerable due to being a lay claimant with no witnesses on my side. That is why I am very grateful to have had you to bounce my ideas off. Thankyou very much again.

[steampowered]

The application probably has not been notified for a hearing because the clerk did not read it properly. They will just skim-read documents before putting them on the file. As a general rule you need to make it very clear what you want on the face of the application, not buried in witness statements, and write to the court if not clear. I doubt the judge has anything to do with it - the judge does not arrange hearings and is unlikely to read any of your papers until the day of the hearing, if at all (at hearings never assume that the judge has read anything, always assume you have to talk him through it), I would bet money that the judge has not read anything since the last hearing.

 

I am afraid cock-ups are a part of life in the court system. It is not unusual and is not anything sinister. It is especially common with litigants in person if it is not immediately obvious to the clerk on looking at the document for less than 10 seconds what you are asking for. If in doubt speak to the clerks.